B-168546, DEC. 24, 1969

B-168546: Dec 24, 1969

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WHICH WAS REQURIED TO BE REPAID THROUGH LOCALLY APPROVED PAY WITHHOLDING AGREEMENT BECAUSE EMPLOYEE WAS INELIGIBLE TO RECEIVE QUARTERS ALLOWANCE UNDER SEC. 031.12 DEPARTMENT OF STATE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS. WHILE PAYMENTS WERE ERRONEOUSLY MADE. LIVING QUARTERS ALLOWANCES ARE NOT CONSIDERED PAY AND LONG-ESTABLISHED RULE IS. POZZINI: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 6. WHICH WAS FORWARDED TO US BY LETTER OF THE DEFENSE INTELLIGENCE AGENCY DATED NOVEMBER 19. THAT IT IS PROPER TO COLLECT FROM YOU THE TOTAL AMOUNT OF LIVING QUARTERS ALLOWANCE PAID TO YOU AS A RESULT OF ADMINISTRATIVE ERROR. THE RECORD INDICATES YOU WERE APPOINTED AS A BILINGUAL SECRETARY AT ROME.

B-168546, DEC. 24, 1969

QUARTERS ALLOWANCE--CIVILIAN OVERSEAS EMPLOYEES--ENTITLEMENT REGARDING ROME, ITALY, RESIDENT EMPLOYED LOCALLY WHO RECEIVED QUARTERS ALLOWANCE FOR APPROXIMATELY 15 MONTHS AFTER APPOINTMENT, JULY 10, 1967, WHICH WAS REQURIED TO BE REPAID THROUGH LOCALLY APPROVED PAY WITHHOLDING AGREEMENT BECAUSE EMPLOYEE WAS INELIGIBLE TO RECEIVE QUARTERS ALLOWANCE UNDER SEC. 031.12 DEPARTMENT OF STATE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), WAIVER OF UNITED STATES CLAIM AGAINST EMPLOYEE FOR ERRONEOUS PAYMENT OF PAY, ON OR AFTER JULY 1, 1960, UNDER PUB. L. 90- 616, 5 U.S.C. 5584, MAY NOT BE ALLOWED SINCE, WHILE PAYMENTS WERE ERRONEOUSLY MADE, LIVING QUARTERS ALLOWANCES ARE NOT CONSIDERED PAY AND LONG-ESTABLISHED RULE IS, IN ABSENCE OF STATUTORY PROVISION, UNITED STATES MAY NOT BE HELD LIABLE FOR ERRONEOUS ACTS OF ITS AGENTS.

TO:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 6, 1969, WHICH WAS FORWARDED TO US BY LETTER OF THE DEFENSE INTELLIGENCE AGENCY DATED NOVEMBER 19, 1969, REFERENCE U-859/CC-1. YOU REQUEST RECONSIDERATION OF THE DETERMINATION BY OUR CLAIMS DIVISION DATED OCTOBER 9, 1969, THAT IT IS PROPER TO COLLECT FROM YOU THE TOTAL AMOUNT OF LIVING QUARTERS ALLOWANCE PAID TO YOU AS A RESULT OF ADMINISTRATIVE ERROR.

THE RECORD INDICATES YOU WERE APPOINTED AS A BILINGUAL SECRETARY AT ROME, ITALY, BEGINNING JULY 10, 1967. THROUGH ADMINISTRATIVE ERROR YOU WERE PAID A LIVING QUARTERS ALLOWANCE FOR APPROXIMATELY 15 MONTHS. SUBSEQUENTLY YOUR EMPLOYING OFFICE WAS INSTRUCTED BY LETTER OF OCTOBER 28, 1969, FROM THE COMPTROLLER, DEFENSE INTELLIGENCE AGENCY, TO COLLECT THE INDEBTEDNESS OF $2,049.70 OVER A PERIOD OF 5 YEARS THROUGH A LOCALLY APPROVED PAY WITHHOLDING AGREEMENT.

YOU REQUEST RECONSIDERATION OF THE MATTER ON THE GROUNDS THAT (1) YOU WERE ADVISED PRIOR TO YOUR APPOINTMENT THAT YOU WERE ENTITLED TO RECEIVE A QUARTERS ALLOWANCE; AND (2) AS A RESULT OF THE RECEIPT OF THE ALLOWANCE YOU MOVED TO A MORE EXPENSIVE APARTMENT AND THE RETENTION OF THE APARTMENT IMPOSES AN EXTREME HARDSHIP ON YOU IN VIEW OF THE DISCONTINUANCE OF THE ALLOWANCE AND THE INITIATION OF PAY WITHHOLDING TO LIQUIDATE THE INDEBTEDNESS.

AT THE TIME YOU WERE APPOINTED TO YOUR GOVERNMENT POSITION YOU WERE A RESIDENT OF ROME AND EMPLOYED LOCALLY. YOU WERE, THEREFORE, INELIGIBLE TO RECEIVE A QUARTERS ALLOWANCE UNDER SECTION 031.12 OF THE DEPARTMENT OF STATE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) AND THE PAYMENTS WERE ERRONEOUSLY MADE. HOWEVER, WAIVER MAY NOT BE BASED SOLELY ON THE ERRONEOUS ACTIONS OF THE GOVERNMENT EMPLOYEES SINCE IT HAS BEEN A LONG-ESTABLISHED RULE OF LAW THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, THE UNITED STATES MAY NOT BE HELD LIABLE FOR THE NEGLIGENT ACTS OF ITS AGENTS.

PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, 5 U.S.C. 5584, PROVIDES THAT A CLAIM OF THE UNITED STATES AGAINST A PERSON ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY, ON OR AFTER JULY 1, 1960, TO AN EMPLOYEE OF AN EXECUTIVE AGENCY, THE COLLECTION OF WHICH WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES, MAY BE WAIVED IN WHOLE OR IN PART. LIVING QUARTERS ALLOWANCES ARE NOT CONSIDERED PAY. THEREFORE, WE MAY NOT WAIVE YOUR INDEBTEDNESS UNDER THE PROVISIONS OF PUBLIC LAW 90-616.

THE FEDERAL CLAIMS COLLECTION ACT OF 1966, NOW CODIFIED IN 31 U.S.C. 951- 953, PROVIDES AUTHORITY FOR SUSPENDING OR ABANDONING ACTION TO COLLECT DEBTS DUE THE UNITED STATES ON THE BASIS THAT THE DEBTOR DOES NOT HAVE THE PRESENT OR PROSPECTIVE FINANCIAL ABILITY TO PAY OR WHEN THE COST OF COLLECTION IS LIKELY TO EXCEED THE AMOUNT OF RECOVERY. THERE APPEARS, HOWEVER, NO VALID BASIS ON THE FACTS OF RECORD THAT WOULD PERMIT A COMPROMISE OR TERMINATION OF COLLECTION ACTION IN YOUR CASE.

IN VIEW OF THE ABOVE AND SINCE WE ARE UNAWARE OF ANY OTHER AUTHORITY FOR WAIVING YOUR INDEBTEDNESS, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DETERMINATION OF OUR CLAIMS DIVISION.